Meta facing damages claim for failing to properly respond to Facebook complaint

In AB v Meta Platforms Ireland Ltd [2025] NIMaster 2 the Northern Ireland High Court granted permission for proceedings to be served on the defendant tech giant out of the jurisdiction.  The claim relates to Meta's alleged delay in removing content published on a Facebook page that sought to vilify the anonymous plaintiff AB.

AB asserted that it took Meta took some 11 months to remove the content from the point of notification, during which time he suffered serious harm.  Meta sought to argue that the Court should decline jurisdiction, inter alia, on the basis that it had not received proper notice that the content was unlawful (and that when it finally did, the video was removed promptly).

The succinct judgment is a helpful case study on intermediary liability and what is likely to constitute sufficient notification.

Facts

AB had featured in a video published on Facebook page entitled Parents Against Predators NI.  The video was said to be no longer available, but AB asserted it showed him being confronted by vigilante paedophile hunters on two separate occasions.  His name, address, vehicle registration and relationship circumstances were mentioned. His movements in Belfast were apparently discussed and he was insulted repeatedly.  The clear inference was that AB was an alleged paedophile.

The material had resulted in AB being investigated by the police, but no charges were brought.

Litigation history

AB's case was that his first request to remove the video was via Facebook's online reporting tool.  Meta was then notified again via a solicitors' letter on 24 January 2022.  Meta had declined to remove the video.  AB lodged an application for an injunction on 6 December 2022 and the video was removed the following day (Meta claimed it had removed it voluntarily whereas AB claimed the primary publisher(s) had removed it).

AB had originally sued in negligence, intentional infliction of emotional harm and under the Protection from Harassment (Norther Ireland) Order 1997.  In the event, these causes of action were abandoned, and the claim was reframed in misuse of private information and breach of the UK GDPR.  The UK GDPR claim contended that Meta had processed AB's personal data in a manner that was not lawful, fair or transparent and that the processing was not adequate, relevant and limited to what is necessary.

Initial attempts to obtain permission for service outside of the jurisdiction were defective for procedural reasons, but a revised application came before Master Harvey.

The decision

The judgment emphasises that permitting proceedings to be served outside of the UK (in this case Ireland where Meta's European operations are based) is a serious step because it is an interference with the sovereignty of another country. The court must be satisfied that:-

1. There is a good arguable case;
2. One of the jurisdictional gateways is established;
3. There is a serious issue to be tried; and
4. Northern Ireland is a proper place in which to bring the claim.

The position is similar in England and Wales.

The relevant gateway was that the claim was founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction (Order 11 Rule 1(1)(f)).

Once a 'secondary publisher' is on notice of unlawful content it can become liable for publication if it does not remove content within a reasonable time, as per the principle in Tamiz v Google Inc [2013] EWCA Civ 68.  In these circumstances, it can be said to have associated itself with the publication (although note that this may not be the case in defamation claims brought in England and Wales where sections 5 and 10 of the Defamation Act 2013 may absolve a secondary publisher of liability in any event, particularly in circumstances where the identity of the primary publisher is known).

An intermediary can seek to avoid liability by arguing that it has not receive proper notification of unlawfulness.  This may also allow it to rely on the 'mere conduit' defence under Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, which can provide an exemption from liability for hosting allegedly unlawful material.  As the Judge pointed out, "this depends on a range of factors such as whether the service provider had actual knowledge of the unlawful nature of the information posted by third parties, or upon gaining such knowledge, acted expediently to remove it."

The Judge considered there to be force in the argument that AB made four attempts at notification.  He considered AB's solicitors' four-page letter of 24 January 2022 to be particularly significant.  This stated in terms, “Please treat this correspondence as formal notice of unlawful content currently accessible on the Facebook platform.”.  The Judge noted that:

"While it refers to harassment and false accusations against the plaintiff and fails to identify all the allegedly private information forming the basis of the misuse of private information claim now being advanced, it does clearly refer to misuse of private information, citing the relevant caselaw and states the posting in question includes “a video of our client and his name”. It encloses a screenshot of what appears to be the defendant’s decision not to remove the material via its online reporting system and within this is a purported screenshot of the actual original post from the “predators” page.... the notification letter may not be perfect, but it is sufficiently detailed, and the wording appears unambiguous. In any event, and this will be a matter for evidence at trial, such a system of notification in this context is surely designed to be informal and speedy given the volume of such enquiries the defendant no doubt receives. Not every complainant will have the benefit of legal advice as was the case here and be able to formulate their complaint with the precision as is seemingly required by the defendant in the submissions advanced as part of this application."

The Judge considered it relevant that Google Ireland Limited/YouTube had removed similar offending material from its site relatively promptly within 13 days of receiving notification from AB.

It followed that there was a good arguable claim that Meta could be liable for harm in the 11-month period prior to the January 2022 notifications and that any defence under Regulation 19 would fail. The Judge was similarly satisfied that there was a good arguable case that AB had a reasonable expectation of privacy (including in relation to the fact he had was suspected of criminality), that was not outweighed by the countervailing interest of freedom of expression. On the facts of the case as advanced, there was clearly a serious issue to be tried.

Meta also sought to argue that the claim was an abuse of process on the basis that that the nub of this complaint was the falsity of what was allegedly published, and that AB was seeking to circumvent the law of defamation by bringing a privacy and data protection claim.  This argument was given short shrift.

On the question of whether Northern Ireland was a proper place to bring a claim, the Judge noted AB lived in Belfast, the Facebook Page was entitled 'Parents against predators NI', and that AB had been confronted in Belfast.  He therefore considered Northern Ireland was a proper place in which to bring a claim: "the torts alleged were arguably committed in Northern Ireland and the alleged damage sustained occurred in Northern Ireland as a result of the defendant’s alleged breach of statutory duty."

Comment

This judgment is a welcome victory for both common sense and the rights of the many who hit a brick wall when complaining to Meta and other tech giants.

Claimant media lawyers and many of their clients have long been frustrated by the frequently woefully inadequate responses to bona fide complaints to Meta and others like it.  Too often the process is slow, and decisions seem arbitrary and inconsistent.  'Computer says no'-type responses without any engagement with the facts are common even in meritorious complaints about obviously unlawful defamation or harassment.  In recent years, this idiom has become more literal with complaints now largely being processed by machine rather than minion.  Indeed, in this case the Judge commented:

"I am not clear as to whether review and consideration of the notification letter by the defendant was carried out by a human or by artificial intelligence. It is conceivable given the scale of the defendant’s operation that it was the latter, however, if it were the former, a court could well conclude that on any reasonable reading of that letter it could not be seen as anything other than “notification” and a “substantive complaint” of “unlawful content.” These are the actual words used in the letter, thus arguably giving the defendant effective notice of the offending material from the 24 January 2022."

Meta and other large platforms deliberately make it difficult, or impossible, to establish dialogue with an actual individual.  This can mean that the first time a complaint gets before anyone with any legal training is after a complainant has been forced to issue court proceedings.  Sadly, not many individuals are in a position to fund litigation and even those who can may understandably be concerned about the risk of a ruinous adverse costs order if a claim did not succeed.  AB seemingly had the benefit of legal aid.  This is not available in England and Wales, but claimant solicitors should be open to entering into conditional fee agreements in meritorious cases.  This is particularly so given that Meta's recent policy changes in favour of greater 'freedom of expression' are likely to lead to the even greater proliferation of hate speech and even more woeful responses to complaints.